A power of attorney allows a person (the principal) to appoint another person (the attorney-in-fact) to act on his behalf when the principal cannot make his or her own decisions. This may be useful when the principal is unavailable to handle financial or legal matters themselves. It is important to have a power of attorney in case you become unable to handle your own financial or business affairs. If you do not have a power of attorney and become incapacitated, a guardian will be appointed to handle your affairs by the probate court. You will not be able to appoint that individual, which is why is it critical to plan ahead and determine who you would trust to handle your affairs if you are unable to do so.
Who you will appoint is not the only important consideration in drafting your power of attorney. You must also consider what specific powers you want that individual to have in managing your affairs. You can give your attorney-in-fact the authority to manage your real property, personal property, stocks and bonds, banking, businesses, insurance, estate, litigation, personal and family maintenance, benefits from the government, retirement plans, taxes, and digital assets. It is important to consider which of these assets you have, and who you want managing them if you were to become incapacitated. The attorney-in-fact will be limited to only exercising the authority you grant them in your power of attorney. Unless you give specific authorization, the attorney-in-fact will not be permitted to create a trust, amend or revoke a trust, make a gift, create or change rights of survivorship, create or change a beneficiary designation, delegate his authority under your power of attorney, waive your rights as a beneficiary to certain annuities and retirement plans, or exercise certain fiduciary powers.
With so many considerations, it is important to consult an attorney and review your assets, and how you would like them to be controlled should you be no longer able to do so.
Health Care Directives come into play when the principal is sick, injured, or mentally incompetent.
Determining who can make your healthcare decisions for you if you cannot, is one of the most important decisions you can make. Under Ohio law, individuals can designate someone to make their healthcare decisions in the event that their physician determines they are not capable of making informed healthcare decisions for themselves. As long as you are deemed capable of making those decisions yourself, the directive will not come into play. The directive will allow the appointed individual to make healthcare decisions for you to the same extent that you would ordinarily make those decisions. It will also allow the appointed individual access to your health information in order to make those decisions. Even if you have completed a healthcare directive in the past, it is important to reevaluate it and determine if you’d like to revise it.
It is also important to have a living will. While a healthcare directive allows you to designate an individual to make healthcare decisions for you, a living will allows you to make certain specific healthcare decisions about your care in advance. Should you become incapacitated and no longer able to make your healthcare decisions, the living will directs what decisions can be made in regards to your care. It will only be utilized if you become terminally ill or permanently unconscious. It can direct your medical caretakers to withdraw life-sustaining treatment, or not to resuscitate you if those are your wishes. It is important for you to determine how you would want certain medical situations handled, and then to discuss those wishes with counsel to ensure that you have a living will which properly communicates them.
When you discuss your unique family situation with Dworken & Bernstein, they will be able to help you evaluate different courses of action and how they can prepare these documents to fit your needs.